Skeletons for the closet

Opening arguments are far longer in the UK than in the US and long may this continue. By John McDonnell QC

The opening speech by Sir John Duke Coleridge (attorney-general, 1871-1873) on behalf of the trustees of the Tichborne Estate was said to be the longest speech on record; but it has been easily surpassed by Gordon Pollock’s opening on behalf of the liquidators of BCCI in its case against the Bank of England. This raises the questions: is an opening of that magnitude still justified in the age of skeleton arguments and reading lists? And why do speeches of that length not feature in US trials?

In my view, the answer is that we do need speeches like that, and will continue to do so unless we move much closer to the US model in a number of other ways.

A densely reasoned but lengthy skeleton argument, with cross-references to large numbers of documents and authorities, is likely to take much longer to absorb properly than any judge is going to be allowed, and the menace in our present system is the judge who believes (or pretends) that they have grasped what the case is about when that is far from the truth.

A good and thorough opening speech should help everyone. It makes it clear to the judge and opposing counsel, and indeed the clients and witnesses if they are there, how the claimant construes the documents, what they indicate and how the chronology fits together. Hopefully it generates a dialogue with the judge and opposing counsel that clarifies and reduces the issues. A good opening should save at least as many days later on in the trial as it takes up at the beginning.

Why, then, do they not need it in the US? First of all, the case is assigned to a judge at the outset. That was the practice in the Chancery Division until 1904, but the Treasury put a stop to it when it would not allow the number of masters to go on increasing with the number of judges. That is when the practice started of assigning a case to a master but not a judge (originally under the old Group A and Group B system).

The damaging and wasteful consequences of that were well illustrated by a case several years ago in which each side incurred at least £5m in costs before briefs were delivered for the actual trial. There had been 60 interlocutory applications, all listed at random before different judges, and only one of them had been heard by the judge who was eventually selected for the trial. Each time the case came before a new judge, the increasingly complicated story had to be explained again from the beginning; and the different judges displayed notably different attitudes towards recurring problems in discovery and towards the prima facie merits. Often refreshing from a short-term point of view, but really indefensible.

Under the normal US procedure, the assigned judge will hold a number of pre-trial conferences with counsel, at which the preparation of the case will be discussed, sometimes quite informally in the judge’s private room, sometimes more formally if interlocutory matters have to be decided.

When there is an issue to decide, the parties will file briefs, which will typically be more formidable and comprehensive documents than the skeleton arguments we would file in a corresponding case. That is partly because there is more authority available, with a set of law reports for every state in the union, but mostly it is because there may well be no oral argument. The judge will take the time to read the briefs and supporting materials, call a conference if they want to ventilate a point orally, and then issue a written decision.

By the beginning of the trial the judge and the opposing teams will be as familiar with the case and with each other’s position as they would be in an English trial at the end of a good opening. Furthermore, the issues will have been clarified and refined, and some points will have been either decided or abandoned.

A move in that direction would be better news for solicitors than for the bar. A substantial brief for a US court will often represent research undertaken by quite a large team. Furthermore, it may well never be necessary for any member of the team to present the argument orally; and should oral argument be required, there is likely to be ample warning. If that became the practice here, the litigation department of a large English firm of solicitors would be able to run a case itself to a much greater extent than it could now. It would certainly be able to get closer to the prediction of one well-known firm at the time of the Mackay reforms: that one day it would only have to instruct leading counsel.

Would it be better for the lay client? Well, about 10 years ago some clients of mine had to decide whether to start proceedings in New York, where the defendants were based and where a three-year limitation period was about to run out, or in England. We decided to bring over a well-known trial lawyer from one of the best firms in New York to spend a day comparing notes about the differences which ought to be taken into account when the clients made their choice.

By the end of the day it was obvious to all of us that it had to be New York.

The case would be assigned to a commercial judge, who would hear it with a jury of six.

The clients loved the idea that, at the third or fourth of what would probably end up as 20 pre-trial conferences, the judge was likely to want to know what was being done about settling the claim. This would be good, as we had strong and damaging evidence against a reputable and sensitive institution.

Even better, when the judge was sufficiently informed as to the respective attitudes towards settlement, said judge was likely to send one team outside while the other team received a piece of the judge’s mind.

Should this big-stick mediation fail, the unreasonable party would face the same judge at the trial; but it would be difficult to complain of bias because the summing-up to the jury would be submitted to both sides for their agreement before being delivered.
I am afraid that what clinched it was that (to the mortification of the English team) the case was likely to be cheaper in New York. Although we were looking at an expensive firm on Park Avenue, the estimate was considerably less than the London total for a City firm and two counsel.

I have to admit that it may also have had something to do with our New York colleague’s confident assurance that there was no way that the institution in question could win against a pension fund in front of a New York jury.

John McDonnell QC is head of chambers at Thirteen Old Square